Gillaspie v. Harker

• Decision Date: 24 January 2022
• Docket Number: C. A. 2:19-cv-00453-DCN-MHC
• Parties: Christina Gillaspie, Plaintiff, v. Thomas W. Harker, [1]Acting Secretary of the Navy, Defendant.
• Court: U.S. District Court — District of South Carolina

Christina Gillaspie, Plaintiff,
v.
Thomas W. Harker, ^[1]Acting Secretary of the Navy, Defendant.

C. A. No. 2:19-cv-00453-DCN-MHC

United States District Court, D. South Carolina, Charleston Division

January 24, 2022

REPORT AND RECOMMENDATION

Molly H. Cherry, United States Magistrate Judge

Plaintiff, a former civilian employee of the Navy who worked at the Space and Naval Warfare Systems Command ("SPAWAR") in North Charleston, South Carolina, brings this action against her former employer, alleging claims of employment discrimination and retaliation pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) ("ADEA"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-16(c) ("Title VII"); and the Americans with Disabilities Act, 42 U.S.C. § 126, et seq. ("ADA"), as applied through § 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq. ECF No. 39.

Before the Court is Defendant's Motion for Summary Judgment, ECF No. 79 ("Motion"), filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff filed a Response, ECF No. 85, and Defendant filed a Reply, ECF No. 89. With leave of the Court, Plaintiff filed a Sur-Reply, ECF Nos. 91-1. ECF No. 92. The Motion is ripe for review.

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All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted.

FACTUAL BACKGROUND

Plaintiff is female, over the age of forty, and an Asian-Pacific Islander (Filipino). ECF No. 39 at ¶ 27. She is unable to hear in her left ear due to a degenerative condition. Id.

I. Plaintiffs Work as Lead of the Cloud Team

Plaintiff worked at SPA WAR from September 18, 2006, until her employment was terminated on November 1, 2019. Id. at ¶¶ 3, 28. She alleges that, "[d]uring the course of her SPAWAR employment, [she] established and created a managed service offering - a cloud brokerage - offering commercial cloud services to the Navy and the Department of Defense." Id. at ¶ 29.

Plaintiff met Ryan Gunst, a Caucasian male, in 2007. ECF No. 39 at ¶ 33; ECF No. 84-2, Gunst Dep. 17:18. For a time, they had a good working relationship. ECF No. 84-3, Gunst Dep. 133:20-25. In 2013, Gunst recommended that Plaintiff be brought into the work portfolio that he managed. ECF No. 79-1, Gillaspie Dep. 114:1-8, 122:10-22. In his role as portfolio manager, Gunst did not conduct Plaintiffs performance evaluations and was not responsible for appraising her work. Id. at 113:10-114:14. Gunst's only role in Plaintiffs performance evaluation was to provide input to Plaintiffs supervisor. Id.

A. Comments Regarding Plaintiffs Hearing Aid and Voice Level

During the time she worked on a project within Gunst's portfolio, Plaintiff obtained a hearing device that assisted her in the use of her telephone. ECF No. 79-1 at 44:15-45:22. The

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device went around Plaintiffs neck and was "like a speaker." Id. At a staff meeting in late 2013, Gunst "teased [Plaintiff] about [her] cybernetics increasing because of the device." Id. Plaintiff testified that Gunst made the comment "once or twice," and she does not recall whether other individuals were around when Gunst made the comment Id. at 46:7-9. Plaintiff testified that she was too embarrassed to "make a fuss" about the comment. Id.

Gunst testified that, during the referenced meeting, Plaintiff "was adjusting her hearing aid and [Gunst] said something to the effect that [Plaintiff] had been cybernetically enhanced." ECF No. 79-2, Gunst Dep. 66:17-67:7. According to Gunst, he "had no indication that [Plaintiff] was embarrassed" by his comment and, if he had, he "would have apologized." Id. Gunst subsequently made comments on other occasions regarding Plaintiff s hearing aid, such as "can't you hear me," "are you listening," or "you need to turn up your hearing aid." ECF No. 79-1 at 130:6-131:20.

B. Meetings in February and March 2014

Plaintiff testified that Gunst first began engaging in discriminatory and harassing conduct toward her after an incident in February 2014. ECF No. 84-1 at 121:13-123:2. All IPT leads, including Plaintiff, were required to attend a meeting in February 2014. Id. After the meeting, there was confusion as to how the IPT leads were to bill their time, as they typically did not charge overhead but instead charged direct work. Id. When Plaintiff asked Gunst for the overhead charge number, he told her to talk to John Thompson, who then sent an email to all senior leadership explaining that the portfolio managers-such as Gunst-should have the charge numbers for the meeting and should provide those numbers. Id. Plaintiff perceived that Gunst was embarrassed by Thompson's email and testified that "for some reason, my relationship with [Gunst] was damaged. Like, he felt that I was undermining him." Id.

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Gunst spoke with Roy Lindsay, Plaintiffs competency supervisor, on several occasions to discuss Gunst's general assessment that Plaintiff was not performing well. ECF No. 84-2, Gunst Dep. 41:3-19. On or about March 4, 2014, Lindsay sent an e-mail to Plaintiff identifying "items for immediate improvement and items that need clarification" based on concerns Gunst had raised to Lindsay and Phil Leonard (another supervisor) regarding Plaintiff. ECF No. 85-2 at 3-4 (identifying, among other issues, concerns regarding "Portfolio communications and protocol," including "Recognize & respect the Leadership COCs, Professionalism, [and] Protocol"); see ECF No. 79-1 at 113:19-25. Lindsay directed Plaintiff to have "a one-on-one meeting with Ryan Gunst to discuss the communication issues he brought up via e-mail to [Lindsay] and Phil Leonard." ECF No. 85-2 at 2; see ECF No. 79-1 at 133:5-21.

Gunst and Plaintiff met on March 5, 2014, and Plaintiff sent an e-mail to Lindsay (copying Leonard) later that day summarizing the meeting. ECF No. 85-2 at 2-3. Gunst and Plaintiff discussed "his concerns over recognizing and respecting the Chain of Command," her teleworking arrangement, the location of her office, and how Plaintiff supports Gunst's "informational requests." Id. at 2-3.

Plaintiff testified that at the March 5 meeting, Gunst accused her of yelling at him previously, but Plaintiff did not recall being "overly upset" during the circumstance Gunst described, so she told him, "I didn't raise my voice at that time because, you know, understand, I have volume control issues due to my hearing disability. And he looked me straight in the eye and said, bullshit."^[2] ECF No. 79-1 at 134:14-25. Plaintiff testified that Gunst never made a comment

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like that again about her disability and that that conversation "was basically the last time I spoke to Ryan Gunst." Id. at 135:10-13. In her email to Lindsay, Plaintiff summarized this part of the meeting as follows:

The initial part of the meeting covered his feeling that I had raised my voice to him (he says I yelled at him, a point I most definitely do not concur with). He concurred that he raised his voice to me first, but feels due to his positional authority as a senior leader that it is appropriate for him to raise his voice or speak any manner he chooses to lesser employees. This is a concerning matter to me from a personal and professional standpoint. As Mr. Gunst and my management are aware[, ] I wear a hearing aid (a point he has commented on by saying the he "sees my cybernetics have increased" in the past). I feel personally and professionally embarrassed to have my disability brought up to me in such a manner and I try not to let it impact my work. Given the heightened sensitivities of the situation[, ] it is very possible my voice raised as being forced into confrontational situations can impact my conscious control of my volume.

ECF No. 85-2 at 2.

According to Plaintiff, Lindsay felt strongly that Plaintiff should file an EEO complaint and offered to walk her over to the EEO office, and he suggested that she talk to David Monahan. ECF No. 79-1 at 135:14-23. She ultimately filed an EEO complaint months later after she was removed as Cloud Team Lead. Id.

C. June 2014 Complaints

In early June 2014, Plaintiff met with David Monahan, the Director of Management Operations in the division where Gunst and Gillaspie worked who, at that time, was serving as the acting Executive Director. ECF No. 85-1 at 2; ECF No. 84-17, Monahan Dep. at 10:9-24. Plaintiff told Monahan about her concerns regarding Gunst. ECF No. 84-1, Gillaspie Dep. at 80:4-10; ECF No. 85-1 (Verified Timeline stating that Plaintiff "reported hostile work environment, abuse of positional authority and discriminatory treatment. Talked about re-alignment of CSIIPT out of ICO."). After the meeting, Monahan told Peter Vandemeulebroecke, Plaintiffs third-level

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supervisor, that Plaintiff was having problems with Gunst, and he asked Vandemeulebroecke to "look into it" without specifying how to look into it. ECF No. 84-17, Monahan Dep. 32:10-33:19.

On or around June 29, 2014, Plaintiff provided Lindsay, per his request, with the "list of events of concerns involving Ryan Gunst since being in his portfolio," noting that prior to the February 26 IPT meeting and the issues surrounding the overhead charge number, "everything had appeared to be going well and I was surprised to find that he complained up the chain in regards to this event." ECF No. 85-3, Lindsay Complaint (documenting concerns through June 20, 2014); see ECF No. 85-1 at 1. Plaintiff recommended that the Cloud work be mostly moved out of Gunst's portfolio or, alternatively, that a "senior-level intervention and facilitation [occur] to set up the Rules of Engagement for communication on this task." ECF No. 85-3 at 6.

D. Negative...